Jones v. Douglas County

Extensions granted as authorized by OAR 660-033-0140(3), even if done in violation of the rule's requirements, are still considered granted "under" the rule and are therefore preempted from LUBA review.

In 1995, Douglas County approved establishment of an "owner of record" dwelling on the property of Philip and Cynthia Bowes. Douglas County then granted 14 extensions of the original approval over the next 15 years. Multiple neighboring property owners appealed five of those extensions to the Land Use Board of Appeals. LUBA dismissed the appeals for lack of jurisdiction pursuant to OAR 660-033-0140(3), which states that the extensions are not land use decisions and are therefore not within LUBA's jurisdiction. The neighbors argue that because the extensions at issue failed to satisfy the requirements of OAR 660-033-0140, the extensions were not granted under OAR 660-033-0140 and are not exempt from LUBA's jurisdiction per subsection (3). The Court of Appeals determined that if the neighbors' argument succeeded, LUBA would be required to decide the merits of any similar appeals to determine whether or not it had jurisdiction over the appeal, and the jurisdictional limitation would be rendered meaningless. The Court then decided that even if the extensions were erroneously granted, they were still made under OAR 660-033-0140 and are therefore exempt from LUBA review. Affirmed.